Let the voting begin: Voters to decide fate of five measures in N.D.

October 21, 2012

North Dakota voters will be asked to support modern farming practices, tighten the state's smoking ban and make pet cruelty a felony when they go to the polls Nov. 6.

The three initiated measures are joined on the ballot by two constitutional measures, advanced to the ballot by the 2011 Legislature.

The North Dakota Farm Bureau has taken the lead for ND Feeding Families in pushing Measure 3, which protects the right of farmers and ranchers to engage in modern farming and ranching practices.

Article Photos

Jill Schramm/MDNMeasure 5 supporters with a couple of pets that would be protected by the measure meet at Pinkerton Animal Hospital Wednesday. From left are Deborah Hamstad, a vet technician at Pinkerton, Jenn Carlson, Pinkerton receptionist, Kristine Seabolt of the Souris Valley Animal Shelter and Markie Houston, a veterinary assistant at Pinkerton. The clinic seeks a home for the cat, Splat, who has hind-leg paralysis, while the shelter seeks a home for the dog.

Doyle Johannes of Underwood, state president of the Farm Bureau, said the intent of the measure is to prevent outside interests from interrupting farming and ranching operations by imposing costly, unnecessary rules.

As an example, he cited the case of a California chicken farm that went out of business after a law passed requiring larger cages. Millions of dollars would have been required to convert facilities to handle larger cages. Johannes said the mandate, which had no science behind it, over-ruled farmers' efforts to adopt a cage size that was cost effective and maintained the health of their chickens. Similar concerns about interference exist related to biotechnology in crop agriculture, he said.

"We decided we wanted to be proactive. We wanted to come out with a constitutional amendment that would protect farming and ranching interests in North Dakota," Johannes said.

Fact Box

North Dakota General Election Ballot

Measure 1: Removes the Legislature's ability to impose a poll tax from the constitution.

Measure 2: Adds a requirement in the constitution that state executive branch officials take oaths of office.

Measure 3: Changes the constitution to state that the right of farmers and ranchers to engage in modern farming and ranching practices shall be forever guaranteed in this state. No law shall be enacted which abridges the right of farmers and ranchers to employ agricultural technology, modern livestock production and ranching practices.

Measure 4: Prohibits smoking, including the use of electronic smoking devices, in public places and most places of employment in the state, including certain outdoor areas.

Measure 5: Creates a class C felony penalty for an individual who maliciously and intentionally harms a living dog, cat or horse and provides a court with certain sentencing options. The measure exempts production agriculture, lawful hunting and trapping and certain other legal activities.

The measure has received widespread support, gaining more than 31,000 signatures to get on the ballot, he said. The measure has the support of nearly every farm group but the Farmers Union.

Farmers Union membership took a position against the measure's concept a year ago. The organization is reluctant to change the constitution in a major way, said president Elwood "Woody" Barth, Mandan.

"We just don't feel this is of constitutional value," he said.

He said the state's current right-to-farm law, which protects farmers in land-use conflicts, is adequate. The Farmers Union also argues that Measure 3 doesn't require the use of sound agricultural practices and would prohibit any local zoning law, state statute or state regulation ranging from animal cruelty prevention to segregation of genetically modified crops.

"We are very fearful that this will take away local control. The control then would be with the federal government," Barth said.

Johannes said fears are unfounded. He agreed that the measure doesn't apply to federal regulations, which currently exist in areas of conservation and environmental protection. However, he argues that the measure will not affect local zoning, state laws on animal health or other existing regulations.

"We are not trying to get around any laws. It's just to try to maintain what we have now," he said.

Measure 4 would eliminate smoking in most areas that were left out of a law that took effect in August 2005. Smoking would be banned in bars, truck stops, tobacco stores, work places available to be leased for private functions and smoking rooms in hotels. It would eliminate smoking 20 feet from entrances, exits or air in-takes of establishments that prohibit smoking.

If the smoke-free law passes, North Dakota will join 29 other states, Washington, D.C., and Puerto Rico, in including bars as smoke-free establishments. North Dakota cities that already have comprehensive smoke-free laws are Bismarck, Carrington, Cavalier, Devils Lake, Fargo, Grand Forks, Linton, Lisbon, Napoleon, Pembina and West Fargo.

Smoke-Free North Dakota reports second-hand smoke kills between 80 and 140 North Dakotans every year. A study by the University of North Dakota School of Medicine and Health Sciences found that heart attacks in Grand Forks dropped by 24 percent within four months of the city's comprehensive smoke-free law.

"We want everyone to be able to breathe clean air and not die prematurely," said Carolyn Bodell, president of the Minot STAMP coalition.

Bodell said the intent of the measure is to protect the health of employees and others who have limited options in avoiding smoking environments. State lawmakers have been reluctant to take action on a subject they deem best left to local communities, while some cities have declined to pass smoke-free ordinances on the grounds that it should be state regulated, she said. So smoke-free coalitions in the state concluded that the best place to decide the issue is at the ballot, she said.

Rudie Martinson, executive director of the North Dakota Hospitality Association, Bismarck, said the association has consistently opposed broad smoke-free laws for the past few years.

"That decision should be left up to the business owners and operators," he said, noting that consumer choice will drive those decisions. "People have been voting with their pocketbooks. That would be the method that we would prefer to see."

Bodell said a smoke-free law is no different than other health and safety regulations that businesses already must comply with.

The measure also bans electronic cigarettes in smoke-free places, although one study has shown harmful vapors are minuscule. Bodell said other studies have shown the cigarettes produce toxins. For that reason and to avoid confusion in enforcing smoking restrictions, the measure includes the ban.

The measure doesn't restrict smoking on tribal lands or in American Indian ceremonies, in private residences, in privately operated businesses with no employees or outdoor places not covered by the 20-foot distance clause.

The fine for an infraction by an individual can be up to $50 per offense. The fine for an establishment is not to exceed $100 for a first offense but can grow to $500 with suspension or revocation of a permit or license when multiple offenses occur in a year.

If approved, the law likely would take effect in mid-December.

Measure 5 would make it a class C felony for an individual to maliciously and intentionally harm a living dog, cat or horse. The measure would not apply to production agriculture or to lawful activities of hunters and trappers, licensed veterinarians, scientific researchers, or to individuals engaged in lawful defense of life or property.

The statutory measure provides that a judge may order mandatory psychological or psychiatric evaluations or counseling and ban ownership of a dog, cat or horse for up to five years. That is in addition to the felony penalty of up to $5,000 and/or five years in prison. Currently, the maximum penalty for the most severe misdemeanor is $2,000 and a year in jail.

Karen Thunshelle of Minot, chairwoman of North Dakotans to Stop Animal Cruelty, said a number of North Dakotans concerned about animal welfare initiated the measure after continually seeing the Legislature fail to act. The measure addresses the concern that North Dakota is one of only two states without a felony penalty for egregious animal abuse, she said. If the measure passes, a person could be charged with a felony for maliciously and intentionally engaging in certain actions, including burning, poisoning, suffocating drowning, dragging to death or blinding.

Julie Ellingson, executive vice president of the North Dakota Stockmen's Association, said the list of abuses aren't the offenses most commonly seen. Starvation and abuse through hoarding are more common but aren't addressed in the measure, she said.

The Stockmen's Association is part of a coalition called North Dakota Animal Stewards, which is opposing Measure 5. The coalition includes many farm groups and has endorsements from a number of veterinarians and others.

Those coalition members and others make up the North Dakotans for Responsible Animal Care coalition, which has drafted its own animal welfare proposal to present to the Legislature. The proposal contains an array of penalties that vary with the offense and covers more than pets. The Legislature has indicated it will support a bill that has support of all the stakeholders, Ellingson said.

Voter approval of Measure 5 would impede passage of the coalition's legislation, Ellingson said. Changing voter-approved laws requires a two-thirds vote of the Legislature for the first seven years, and legislators typically are reluctant to go against the will of the people, she said.

She said the coalition's comprehensive legislation is better "not only for animals but for the people taking care of them. ... North Dakotans for Responsible Animal Care has worked long and hard and we have a much, much better plan that doesn't undo the good work of North Dakotans."

Thunshelle responded that Measure 5 would not interfere with any additional legislation that might be considered. Her group obtained a legal opinion from attorney Monte Rogneby of Bismarck stating that as long as the Legislature doesn't rewrite language in an approved initiative, it can enact any animal welfare laws without a two-third majority.

Opponents argue that only a couple of instances of abuse have occurred in the past 20 years that fall under the measure, but Thunshelle said there have been at least two instances just this past summer. Those cases involved near choking by swinging a dog by a leash and beating a dog to death.

Opponents have argued that humanely putting down an injured animal would open a person to charges, but Thunshelle said the measure applies only to malicious acts. It also excludes shooting as an act of abuse.

"What we are going for is a felony for, basically, torture," Thunshelle said. "People want the change. ... We need to start getting our laws in line with the values here."

She said the connection between harming animals and going on to harm other people is strong, creating more reason to address animal cruelty.

North Dakota volunteers collected more than 25,000 signatures in petitioning to get the measure on the ballot. The endorsement of the Humane Society of the United States has prompted some opposition to the measure, particularly by agricultural groups that have been at odds with the society.

The Humane Society has thousands of members in North Dakota so it is reasonable that the organization should support efforts of those members to improve animal welfare laws in their state, Thunshelle said. The measure has support from a number of animal welfare groups as well as country singer Lynn Anderson and actor Kellan Lutz, who are former North Dakotans.

Measures 1 and 2 are not so controversial as the three initiated measures.

Measure 1 would eliminate legislative authority that exists in the constitution to impose a poll tax on voters.

Sen. Dick Dever, R-Bismarck, a sponsor of the legislative resolution to put the matter to voters, said courts in 1964 found poll taxes to be unconstitutional. Although North Dakota has never levied the tax, its constitution states that the legislative assembly may impose an annual poll tax of not more than $1.50 on every male age 21 to 50. Using language common when North Dakota became a state in 1889, the provision excludes "paupers, idiots, insane persons and Indians."

Dever said he can't explain why the provision with its objectionable language has remained in the constitution this long except that people either never read the constitution or just didn't want to make an issue of it.

"I have read the constitution," he said. "I sit on the Human Services Committee, and I have dealt with issues regarding people with disabilities and developmental disabilities."

The resolution passed both houses of the Legislature without a dissenting vote last session.

Measure 2 also would amend the constitution to require key state executive branch officials to take oaths of office. The constitution already has an oath requirement for legislative and judicial members. By legislative action in 1890, executive officials are required by law to take an oath.

Rep. Tom Conklin, D-Douglas, a sponsor of the House resolution, said it may have been an oversight in the writing of the constitution that executive officials weren't listed in the oath requirement.

Sen. David Hogue, R-Minot, who voted against the resolution last session, objected because the resolution came in far after the deadline and should have been rejected under legislative rules. He said he also is reluctant to change the constitution when the Legislature can pass a law that does the same thing.

Existing state law requires elected officials of all political subdivisions to take or sign an oath. State executive branch officials typically are sworn in at the time of the State of the State address but can sign and file the oath if unable to be present. The oath is the same one listed in Section 4, Article XI of the constitution for legislative and judicial members.